Babylonian Talmud: Tractate Baba Kamma

Folio 44a

now in the case of Cattle killing man where the law made small cattle [liable] as [it did make] big cattle,¹  should it not stand to reason that there is liability for little ones as there is for grown-ups?²  — No, [for it could have been argued that] if you stated this ruling in the case of Man killing man it was [perhaps] because [where Man injured man] there was liability for the four [additional] items,³  but how would you be able to prove the same ruling in the case of Cattle where there could be no liability for the four [additional] items? Hence it is further laid down: Whether it have gored a son or have gored a daughter to impose liability for little ones as for grown-ups. So far I know this only in the case of Mu'ad.⁴  Whence do I know it in the case of Tam? — We infer it by analogy: Since there is liability for killing Man or Woman and there is similarly liability for killing Son or Daughter, just as regarding the liability for Man or Woman you made no discrimination between Tam and Mu'ad,⁵  so also regarding the liability for Son or Daughter you should make no discrimination between Tam and Mu'ad. Moreover there is an a fortiori argument [to the same effect]; for if in the case of Man and Woman who are in a disadvantageous position when damages had been done by them,⁶  you have nevertheless made there no discrimination between Tam and Mu'ad, in the case of Son and Daughter who are in an advantageous position when damage has Been done by them,⁷  should it not stand to reason that you should make no discrimination between Tam and Mu'ad? — [No,] you cannot argue thus. Can we draw an analogy from a more serious to a lighter case so as to be more severe [with regard to the latter]? If⁸  the law is strict with Mu'ad which is a more serious case, how can you argue that it ought to be [equally] strict with Tam which is a lighter case? Moreover, [you could also argue that] the case of Man and Woman [is graver] since they are under obligation to observe the commandments [of the Law],⁹  but how draw therefrom an analogy to the case of Son and Daughter seeing that they are exempt from the commandments?¹⁰  It was therefore necessary to state [further]: Whether it have gored a son, or have gored a daughter; [the repetition of the word 'gored' indicating that no discrimination should be made between] goring in the case of Tam and goring in the case of Mu'ad, between goring in the case of killing and goring in the case of mere injury.

MISHNAH. IF AN OX BY RUBBING ITSELF AGAINST A WALL CAUSED IT TO FALL UPON A PERSON [AND KILL HIM], OR IF AN OX WHILE TRYING TO KILL A BEAST [BY ACCIDENT] KILLED A HUMAN BEING, OR WHILE AIMING AT A HEATHEN¹¹  KILLED AN ISRAELITE, OR WHILE AIMING AT NON-VIABLE INFANTS KILLED A VIABLE CHILD, THERE IS NO LIABILITY.

GEMARA. Samuel said: There is exemption [for the ox in these cases] only from [the penalty of being stoned to] death, but there is lability [for the owner] to pay kofer.¹²  Rab, however, said: There is exemption here from both liabilities.¹³  But why [kofer]?¹⁴  Was not the ox Tam?¹⁵  — Just as [in an analogous case] Rab said that the ox was Mu'ad to fall upon human beings in pits,¹⁶  so also [in this case we say that] the ox was Mu'ad to rub itself against walls [which thus fell] upon human beings. But if so, why should the ox not be liable to [be stoned to] death? It is correct in this other case where we can explain that the ox was looking at some vegetables and so came to fall [into a pit],¹⁷  but here what ground could we give [for assuming otherwise than an intention to kill on the part of the ox]? — Here also [we may suppose that] the ox had been rubbing itself against the wall for its own gratification.¹⁷  But how can we know this?¹⁸  — [By noticing that] even after the wall had fallen the ox was still rubbing itself against it.

1. Cf. infra p. 380, and 'Ed. VI, 1.
2. Why then was it necessary for Scripture to make this explicit in Ex. XXI, 31?
3. For which cf. supra p. 12.
4. As verse 31 follows 29 and 30 which deal with Mu'ad.
5. As clearly seen in verses 29 and 30.
6. I.e. they are liable to pay for it. Cf. supra p. 63 but also infra p. 502.
7. For which they are not liable to pay; see infra p. 502.
8. [Some texts omit, 'If … Moreover,' v. D.S. a.l.]
9. Cf. however, supra p. 64, but also Kid. I, 7.
10. So long as they are minors and have not reached puberty for which cf. Nid. 52a.
11. Cf. supra p. 211, n. 6.
12. As also maintained by R. Johanan, supra p. 248, and still earlier by R. Eliezer, supra p. 237.
13. For the reason v. supra 244
14. In the case dealt with first in the Mishnah.
15. In killing a human being by rubbing itself against a wall and thus causing it to fall. In the case of Tam no kofer is paid; see Ex. XXI, 28.
16. Infra p. 274.
17. And as intention to kill was lacking, no death penalty could be attached.
18. Seeing that the ox was Mu'ad to rub itself against walls.

But granted all this, is this manner of damage¹  not on a par with that done by Pebbles²  [where there would be no liability for kofer]?³  — R. Mari the son of R. Kahana thereupon said: [We speak of] a wall gradually brought down by the constant pushing of the ox.⁴

It has been taught in accordance with Samuel and in refutation of Rab: There are cases where the liability is both for [stoning to] death and kofer: there are other cases, where there is liability for kofer but exemption from [stoning to] death; there are again [other] cases where there is liability [for stoning to] death but exemption from kofer; and there are still other cases where there is exemption both from [stoning to] death and from kofer. How so? In the case of Mu'ad [killing a person] intentionally, there is liability both for [stoning to] death and for kofer.⁵  In the case of Mu'ad [killing a person] unintentionally there is liability for kofer but exemption from [stoning to] death. In the case of Tam [killing a person] intentionally there is liability [for stoning to] death but exemption from kofer. In the case of Tam [killing a person] unintentionally, there is exemption from both penalties. Whereas in case of injury [caused by the ox] unintentionally, R. Judah says there is liability to pay [damages], but R. Simeon says there is no liability to pay.⁶  What is the reason of R. Judah? — He derives [the law of damages from] that of kofer: just as for kofer there is liability even where there was no intention [to kill], so also for damages for injuries there is liability even where there was no intention [to injure]. R. Simeon, on the other hand, derived [the law of damages] from that of the killing of the ox: just as the stoning of the ox is not required where there was no intention [to kill], so also damages are not required where there was no intention [to injure]. But why should R. Judah also not derive [the ruling in this case] from [the law applying to the] killing [of the ox]? It is proper to derive [a ruling regarding] payment from [another ruling regarding] payment, but it is not proper to derive [a ruling regarding] payment from [a ruling regarding] killing. Why then should R. Simeon also not derive [the ruling in this case] from [the law applying to] kofer? — It is proper to derive a liability regarding the ox⁷  from another liability that similarly concerns the ox,⁸  thus excluding kofer which is a liability that concerns only the owner.⁹

OR IF THE OX WHILE TRYING TO KILL A BEAST [BY ACCIDENT] KILLED A HUMAN BEING … THERE IS NO LIABILITY. Where, however, the ox had aimed at killing one human being and [by accident] killed another human being, there would be liability. [This implication of] the Mishnah is not in accordance with R. Simeon. For it has been taught: R. Simeon says: Even where [the ox] aimed at killing one person and [by accident] killed another person there would be no liability. What was the reason of R. Simeon? — Scripture states: The ox shall be stoned and its owner also shall be put to death,¹⁰  [implying that only] in those cases in which the owner would be subject to be put to death [were he to have committed murder], the ox also would be subject to be put to death. Just as therefore in the case of the owner the liability arises only where he was aiming at the particular person [who was actually killed], so also in the case of the ox the liability will arise only where it was aiming at the particular person [who was actually killed]. But whence do we know that this is so even in the case of the owner himself?¹¹  — Scripture States: And lie in wait for him and rise up against him¹²  [which indicates that he is not liable] unless he bad been aiming at the particular person [whom he killed]. What then do the Rabbis¹³  make of [the words,] 'And lie in wait'? — It was said at the School of R. Jannai: They except [on the strength of them a manslaughter committed by] a stone being thrown into a crowd.¹⁴  How is this to be understood? If you say that there were [in the crowd] nine heathens and one Israelite, why not except the case on the ground that the majority [in the crowd] were persons who were heathens?¹⁵  And even where they were half and half, does not an accused in a criminal charge have the benefit of the doubt? — The case is one where there were nine Israelites and one heathen. For though in this case the majority [in the crowd] consisted of Israelites, still since there was among them one heathen he was an essential part [of the group], and essential part¹⁶  is reckoned as equivalent to half, and where there is a doubt in a criminal charge the accused has the benefit.

MISHNAH. WHERE AN OX OF A WOMAN, OR AN OX OF [MINOR] ORPHANS, OR AN OX OF A GUARDIAN, OR AN OX OF THE WILDERNESS, OR AN OX OF THE SANCTUARY, OR AN OX OF A PROSELYTE WHO DIED WITHOUT [LEGAL] HEIRS,¹⁷  [HAS KILLED A PERSON], IT IS LIABLE TO [BE STONED TO] DEATH. R. JUDAH SAYS: IN THE CASE OF AN OX OF THE WILDERNESS, AN OX OF THE SANCTUARY AND AN OX OF A PROSELYTE WHO DIED [WITHOUT HEIRS] THERE WOULD BE EXEMPTION FROM [STONING TO] DEATH SINCE THESE HAVE NO [PRIVATE] OWNERS.

GEMARA. Our Rabbis taught: [The word] ox occurs seven times [in the section dealing with Cattle killing man]¹⁸  to include the ox of a woman, the ox of [minor] orphans, the ox of a guardian, the ox of the wilderness, the ox of the Sanctuary and the ox of a proselyte who died without [legal] heirs. R. Judah, however, says: An ox of the wilderness, an ox of the Sanctuary and an ox of a proselyte who died without heirs are exempt from [stoning to] death since these have no [private] owners.

R. Huna said: The exemption laid down By R. Judah extends even to the case where the ox gored and was only subsequently consecrated to the Temple, or where the ox gored and was only subsequently abandoned. Whence do we know this? — From the fact that R. Judah specified both an ox of the wilderness and an ox of a proselyte who died without heirs. Now what actually is 'an ox of a proselyte who died'? Surely since he left no heirs the ox remained ownerless, and this [category] would include equally an ox of the wilderness and an ox of the proselyte who died without heirs? We must suppose then that what he intended to tell us [in mentioning both] was that even where the ox gored but was subsequently consecrated, or where the ox gored but was subsequently abandoned, [the exemption would still apply] and this may be taken as proved. It has also been taught to the same effect:¹⁹  R. Judah went even further, saying: Even if after having gored, the ox was consecrated or after having gored it became ownerless, there is exemption, as it has been said, And it hath been testified to his owner and he hath not kept him in, but that he hath killed a man or a woman, the ox shall be stoned.²⁰  This applies only when no change of status has taken place between the manslaughter and the appearance before the Court.²¹  Does not the final verdict also need to comply with this same condition? Does not the same text, The ox shall be stoned,²²  [apply also to] the final verdict? — Read therefore: That is so only when no change in status has taken place between the manslaughter, the appearance before the Court, and the final verdict.

MISHNAH. IF WHILE AN OX [SENTENCED TO DEATH] IS BEING TAKEN OUT TO BE STONED ITS OWNER DECLARES IT SACRED, IT DOES NOT BECOME SACRED;²³  IF HE SLAUGHTERS IT, ITS FLESH IS FORBIDDEN [FOR ANY USE].²³  IF, HOWEVER. BEFORE THE SENTENCE HAS BEEN PRONOUNCED THE OWNER CONSECRATES IT, IT IS CONSECRATED, AND IF HE SLAUGHTERS IT, ITS FLESH IS PERMITTED [FOR FOOD].

IF THE OWNER HANDS OVER HIS CATTLE TO AN UNPAID BAILEE OR TO A BORROWER, TO A PAID BAILEE OR TO A HIRER, THEY ENTER INTO ALL LIABILITIES IN LIEU OF THE OWNER: IN THE CASE OF MU'AD THE PAYMENT WOULD HAVE TO BE IN FULL, WHEREAS IN THE CASE OF TAM HALF DAMAGES WOULD BE PAID.

GEMARA. Our Rabbis taught: If an ox has killed [a person], and before its judgment is pronounced its owner sells it,

1. Being done not by the body of the ox but by something set in motion by it.
2. Dealt with supra p. 79.
3. [Kofer is imposed only where death was caused by the body of the ox even as is the case with 'goring'.]
4. And was thus the whole time as it were a part of the body of the ox.
5. Ex. XXI, 29-30.
6. Cf. Tosef. B.K. IV.
7. I.e. a liability to make good the damage done by the ox.
8. Such as the death of the ox for the manslaughter it committed.
9. As kofer is the ransom of his life.
10. Ex. XXI, 29.
11. Committing murder.
12. Deut. XIX, II.
13. Who differ from R. Simeon on this point. v. Sanh. 79a.
14. And a person was killed.
15. For in matters of judgment the principle of 'majority' is as a rule the deciding factor. [That does not mean to imply that the killing of a heathen was no murder. The Mekilta in Ex. XXI, 12 states explicitly that the crime is equally condemnable irrespective of the religion and nationality of the victim. But what it does mean is that the Biblical legislation in regard to crime did not apply to heathens. As foreigners they fully enjoyed their own autonomous right of self-help, i.e., blood feuds or ransom, prohibited by the Law to the Jews, and accordingly were not governed by the provisions made in the Bible relating to murder, v. Guttmann, loc. cit. p. 16 ff and supra p. 211, n. 6.]
16. Lit., 'fixed'. For a full discussion of this passage, v. Sanh. (Sonc. ed.) p. 531 and notes a.l.
17. The ox thus becoming ownerless.
18. Ex. XXI, 28-32.
19. Supra p. 55.
20. Ex. XXI, 29.
21. Supra p. 56.
22. Ex. XXI, 29.
23. Cf. supra p. 234.